Extra Abortion Limitation for Native Americans Only

Following scant debate, the Senate last week approved an amendment to an Indian health care bill that would permanently prohibit the use of federal dollars to fund abortions for Native Americans except in rare cases. The move has prompted an outcry from women’s health advocates—who point out that a similar ban has existed on a temporary basis for years—and from tribal groups, who are asking why Native American women should be subject to restrictions not applicable to other ethnic groups. Some charge that the Senate proposal is overtly racist.

The issue is a sensitive one in American Indian communities, where women are statistically more likely to be victims of rape or sexual assault than other American women—but also where victims very rarely use the exceptions to the current federally funded abortion ban in the wake of those crimes. In the face of that discrepancy, advocates say, Congress should encourage victims to take advantage of the available services, not impose tighter restrictions.

The debate pits anti-abortion lawmakers on both sides of the aisle against health-care advocates who fear the latest move could set the stage for broader abortion prohibitions under federal programs outside the realm of Indian health services. In addition, there is the intrigue of scandal, for the sponsor of the controversial amendment, Sen. David Vitter (R-La.), made headlines last year for his earlier entanglement in a prostitution ring. Several abortion-rights sources suggested that Vitter—who built his political career on family-values issues—is trying to bolster his conservative credentials in the wake of that embarrassment.

The controversy swirls around a federal law—known as the Hyde amendment—that prohibits abortion coverage under Medicaid, Medicare and Indian Health Service programs. While the Hyde law must be renewed by Congress each year, the Vitter amendment—which the Senate approved on Feb. 26—would apply Hyde’s restrictions permanently to IHS beneficiaries. For that reason, tribal health advocates charge that the Vitter language treads on the sovereignty of Indian communities and places unique constraints on native women.

"It’s a very racist amendment," said Charon Asetoyer, executive director of the Native American Women’s Health Education Resource Center, "[because] it puts another layer of restrictions on the only race of people whose health care is governed primarily by the federal government. All women are subject to the Hyde amendment, so why would they put another set of conditions on us?"

Vitter’s office did not return several calls and e-mails requesting comment.

A number of women’s health groups have criticized the Vitter amendment as well, claiming it will have no practical effect on women’s health services.

"Apart from being bad public health policy," Planned Parenthood said in a statement, "this language is duplicative of current law and serves only to politicize important legislation regarding comprehensive health care for Native Americans."

Though the Hyde amendment—named for its sponsor, the late Illinois Rep. Henry Hyde (R)—first took effect in 1977, Congress must reapply it annually through the appropriations process. That, according to Vitter, puts the Hyde language "in a tenuous and precarious posture. It puts it up for debate and possible change of policy every year, every time we debate a new Health and Human Services appropriations bill. Therefore, it doesn’t make the policy very solid, very secure, or very clear.

"Vitter’s amendment, attached last week to the Indian Health Care Improvement Act, would eliminate that uncertainty by codifying the Hyde amendment as a matter of authorization, not appropriation. "I suggest that would be a positive statement for life, for positive values for the future," he said on the Senate floor Jan. 22—the same day that thousands of anti-abortion marchers descended on Washington. A month later, the Senate approved Vitter’s amendment by a vote of 52 to 42.

But critics say the creation of a second law governing IHS-funded abortion services might confuse the issue if inconsistencies are found between the two mandates. Indeed, certain elements of Vitter’s amendment stray from the Hyde language. For example, while Hyde allows federally funded abortions for victims of incest at any age, Vitter specifies that the incest exception pertains only to minors.

Marlene Fried, a founding board member of the National Network of Abortion Funds, said the practical implications of that difference would be minimal. Still, she added, the change is significant as "another way of narrowing the [Hyde] exceptions."

The issue is especially charged because Native American women are more than three times as likely to suffer rape and sexual abuse as other women in the United States. Yet despite that statistic, only 25 abortions were performed at all IHS facilities between 1981 and 2001, according to figures gathered from the IHS by the Native American Women’s Health Education Resource Center. (An IHS spokeswoman declined to release more recent IHS-funded abortion figures, suggesting that a reporter file a Freedom Of Information Act request.)

But, advocates say, Indian women continue to have the procedure off the reservation. "Native American women have abortions," Asetoyer said, "and anyone who tells you differently is out of touch with their community."

Susan Cohen, the director of government affairs at the Guttmacher Institute, a nonprofit reproductive health research group, said the Hyde restrictions don’t prevent abortions, but they can delay them as low-income women are forced to save the money to fund the procedures out-of-pocket. That delay, Cohen added, can lead to dangerous complications. "Having later abortions is in no one’s best interest," she said.

Meanwhile, some tribal advocates are concerned that the Vitter amendment might carry additional political significance, as the Senate bill now moves to the House for consideration. Several sources said the controversial amendment is potentially a poison pill for the overall bill, for House Democratic leaders have been loathe to codify the Hyde amendment.

Not that the issue is entirely partisan. A number of Democratic lawmakers voted to approve the Vitter provision last week, including Sens. Ken Salazar (Col.), Evan Bayh (Ind.), Robert Byrd (W.Va.), Robert Casey (Pa.), Tim Johnson (S.D.), Mary Landrieu (La.), Ben Nelson (Neb.), Mark Pryor (Ark.) and Majority Leader Harry Reid (Nev.). Of that group, Landrieu and Johnson are up for reelection this year in relative conservative states, with Landrieu facing a tight race.

Three Republicans—Sens. Susan Collins (Me.), Olympia Snowe (Me.) and Arlen Specter (Pa.)—voted against the amendment. All three have historic records of bucking their party on the abortion issue.

Vitter, for his part, voted against the final IHCIA bill on the same day that his amendment passed. The final bill was approved, however, by a count of 83 to 10.